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On July 24, a bitterly divided Knesset (with its 120 members) passed a law that limited the power of the Supreme Court of Israel to invoke a judicially manufactured “unreasonableness” standard to maintain a level of control over the political branches of government, a feature found nowhere else among Western democracies. The Knesset vote was 64–0, as the opposition walked out, protesting that this law amounted to a dangerous threat to democracy. The change will return to the political branches power over matters that nowhere else in the world are assigned to the judiciary.
This extraordinary power, which has been exercised since the 1990s, allows the Israeli Supreme Court to order the prime minister to fire from his cabinet any minister who is part of an investigation of criminal activities. This amounts to a clear circumvention of the basic law that only allows removal from office upon the conviction of some criminal offense. That same judicial authority allows for the Supreme Court to block natural gas deals or direct national welfare policy on the basic premise of the “right to a minimal dignified human existence.”
The incongruous nature of this power has long been criticized. Thus in 2007, Judge Richard Posner, in his day no shrinking judicial violet, wrote a review, titled “Enlightened Despot,” of a then-recent book titled The Judge in a Democracy, by Aharon Barak, the forceful judge who led the revolution. Posner noted that “Barak created out of whole cloth a degree of judicial power undreamed of even by our most aggressive Supreme Court justices.” After all, US Supreme Court justices work within the framework of a written constitution that has an amendment process; an elaborate system of separation of powers; checks and balances; and a bill of rights. Israel has no written constitution. None of the judicial power wielded by the Israeli justices could be improvised under a customary written constitution, which would be based, as Alexander Hamilton famously stated in Federalist No. 1, on extensive deliberation, e.g., a constitutional convention to form a government based on “reflection and choice” and not “accident and force.”
Israel’s crisis will continue, because the same liberal or progressive forces that walked out of the Knesset will now have their case heard by the Supreme Court in September. In their appeal they will make the obvious argument that if everything to date has occurred under the valid, existing constitutional order, then this law limiting the “reasonableness” standard has to go as well—which means that the court could, on its own authority, entrench its unique powers forever, barring what its opponents might call an unconstitutional coup.
The lawsuit thus requires answers to two different questions. The first is, how did this situation get this way, and the second, is there any way to force the Israeli top court to abandon the extensive powers it now exercises? On the first question, I rely heavily on a thorough analysis by Evelyn Gordon in Mosaic. The first and simplest point is that, without a written constitution, the justices of the Israeli Supreme Court cobbled together an ersatz constitution out of a number of narrow statutory measures that were meant at the time solely as transitory provisions, to remain in effect only until a new constitution could be drafted in the usual thorough matter. Basic Laws, Gordon writes, “were meant to be building blocks for a future constitution. . . . But the Basic Law: Human Dignity and Liberty passed by a vote of 3221 and the Basic Law: Freedom of Occupation passed 23–0. . . . In other words, they were approved by about quarter or less of the 120-seat legislature.”
Moreover, Gordon says, the high court then “unilaterally decided that the two 1992 Basic Laws . . . were a constitution empowering them to overturn ordinary legislation, even though the Knesset never intended them as such.”
The opposition to the court’s action was immediate and has remained constant. But as Posner noted, Barak adopted the trick that Chief Justice John Marshall used in Marbury v. Madison (1803), which is to wait until a later time to exercise the extravagant powers claimed today, thereby dividing the political opposition on whether or not to mount an immediate attack on the law.
The British constitution? Not the same
It is, therefore very difficult to allow this constitution to pass muster by equating it with the nonwritten British Constitution. The two situations have one common thread, insofar as both tend to move sharply to corner solutions on the allocation of power. The British Constitution, after it pushed the king aside, rested on a doctrine of parliamentary supremacy that creates no vested individual rights of speech, property, or conscience. Yet the system has lumbered on because the political consensus was strong enough to give statutory and common-law protection on these issues. And now the United Kingdom, by legislation, created in 2009 a Supreme Court separate from the House of Lords; yet the same distribution of power remains. By contrast, there is no popular legitimacy to the supposed Israeli constitutional order created by a court that Barak and his allies forced on the nation.
Indeed, although the next phase of the legislation has yet to be proposed, it will surely challenge the status quo that gives the current Supreme Court a blocking coalition against new members under a rule (adopted in the 1950s, before the Israeli Supreme Court had arrogated onto itself any constitutional role), whereby all Supreme Court appointments had to be approved by seven votes from a nine-member commission, three of whose members were sitting members of the Supreme Court, voting as a bloc. The two powers—over appointments and activities— thus render the court sui generis, and largely immune to political correction or pressure—until now.
To make matters worse, the backhand formation means there is no amendment process at all.
The sensible conclusion is that since the current statutory package was passed by a Knesset minority, the matter should come to an end under any legislation that passes by a simple majority. The long-deferred constitutional plan could be entrenched in some clear, specific way. But suppose the Israeli Supreme Court holds that its natural-rights approach cannot be dislodged, or can be changed only by a broad consensus across all political parties, which lets the dissenters veto any constitutional reform? What next? Large portions of the Israeli population already are up in arms about the current reforms, which Max Raskin and I have defended against attack from the adamant Israeli left. It seems the much-abused term “democracy” has morphed from meaning the power of the people to make their decisions through fair elections and political deliberation into a judicial commitment to defend social values of equity and fairness from the legislature.
A nonstop ad hominem vendetta exalts the objectors. In his extraordinary column “Israel’s Self-Inflicted Wound,” Bret Stephens sides with “the tech entrepreneurs, the Air Force reservists, the world-famous novelists and doctors” in opposition to the bill. Fair enough. But what about the other side? For the most part, he says, “they represent Israel’s least productive and engaged citizens—ultra-Orthodox Jews who want military exemptions and welfare, settlers who want to be a law unto themselves, ideologues in think tanks—abusing their temporary majority to secure exemptions, entitlements, immunities, and other privileges that mock the idea of equality under law.” Does he want to deny them the vote? Perhaps.
Ironically, at no point does Stephens ever suggest that the law just passed would mandate or promote any of those dire outcomes. Nor does he suggest that all the many parties that joined the winning coalition would hold together if Benjamin Netanyahu or any other prime minister sought to go down any of those adventurous paths. Stephens’s empty concession denies that “the idea of judicial reform is meritless,” but says nothing about how it should be implemented. A better course would be for him to tell his many supporters to lower the temperature of the invective, narrow the field, and work out a deal limited to judicial reform.
He does not. Instead, he doubles down on personal attacks: “Israel wouldn’t be in this national meltdown if Netanyahu weren’t trying to wangle out of his criminal indictment by holding on to power in his coalition of the bigoted, the corrupt, the dependent, and the extreme.”
The deep flaw
The cheap shot about the Netanyahu indictment is intended to inflame and divide the nation. But there is, of course, a second side to the story. It is found in a devastating broadcast interview with Moshik Kovarsky on The Caroline Glick Show, which dissects, in excruciating detail, the backroom intrigue, dubious counts, and weak evidence on individual charges of breach and bribery in the Netanyahu matter over the past ten or so years. It won’t convince any skeptics.
Indeed, this entire episode should bring to the fore yet another defect in the current Israeli system: the excessive concentration of power (all in the name of protecting the rule of law) in the hands of an all-powerful independent attorney general. The AG since 2022 has been Gali Baharav-Miara, Netanyahu’s chief adversary. The attorney general is appointed to that job for a six-year term by a commission that is not answerable to the government, courtesy of the Israeli Supreme Court. The AG controls all legal proceedings brought on behalf of the government, so that no independent government agency can go to court without approval. Wholly apart from Netanyahu, reforming that dysfunctional office is not in the offing. But once the Netanyahu case is off the table, reform of the AG office should be put back on.
In every part of this story there appears an Israeli self-inflicted wound: ingrained inferior institutional design. Barak and his fellow justices pushed too hard and too fast on a set of reforms with no claim to legitimacy credible to those on the other side of the case. And so a great nation could fall apart at the seams unless the Supreme Court or its allies back off their categorial opposition to all judicial reform.Published in